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Tuesday, April 10, 2018

Some Comments on Carissa's Post on Legal Scholarship and Non-Scholarship

My Prawfs colleague Carissa has been doing a superb job in both advancing and drawing attention to the issues she discusses in her most recent post. It is an issue of some interest to me as well, both because I've been blogging for over a decade (albeit less frequently) and dabble in Twitter (which, admittedly and as I've said too often, I find to be like wading in a muddy stream, with or without panning for or finding any gold nuggets). One of her main interlocutors, Eric Segall, has his own post up now on the Dorf on Law blog. I have (and will again crudely publicize) a forthcoming article on some of these subjects and an old, hopefully fun and foolishly candid, piece from back in the day when we were having similar debates about blogs and other forms of online activity by legal scholars in the early 2000s. I wasn't at the conference she refers to, so anything I say about that comes from twits about the conference posted on Twitter while it was occurring. I want to chime in with a few thoughts. I will write at undue length, as usual. But please don't count this as scholarship!

1: The first is the most obvious one and is suggested by what I wrote above: We have had this debate at least once before. More accurately, there have been debates and discussions about academics as public intellectuals for decades, and the legal academy debated the relationship between blogging and legal scholarship pretty fully about a decade ago. Of course we need not take that debate, or any debate, as settling matters, and we might have other things to say about Twitter and other bite-sized forms of writing than we did about blogs. Still, we needn't reinvent the wheel here. My partial sense of that debate is that the consensus that emerged was that blog posts can be a useful form of writing, that they can or should be recognized as a form of service (as op-eds and other public writings are), and that they should not be counted as scholarship for tenure purposes, even though some blog posts can be quite scholarly in nature, albeit without peer review and other disciplinary constraints. I think that's still the right consensus. And that had to do with blogs! Practices vary, but some of the blog posts discussed there were quite long and serious. Some foolish people still insist on long blog posts when they feel they have something to say and want to get the nuances and qualifications just right rather than make a splash. (Or, as in my case, when they write too quickly and haphazardly and don't take the time to refine and shorten the post.) If--and that's a big if, and one not reflected in the posts linked to above, but I gather something like this was said at the conference; again, please take that with a grain of salt, since I'm relying on contemporaneous tweeting--we were to include something like tweets or even tweet threads as activities that should get even partial recognition as scholarship, that would represent quite another step--a step down, I am quite sure. (Incidentally, when I have written long Twitter threads I have been criticized by other legal academics for using Twitter "wrong."* If that's the case, then it certainly should not count as scholarship, any more than we should count interesting faculty lounge discussions or chats over drinks at a conference as scholarship.) As far as either incentives or intrinsic scholarly quality are concerned, I see no compelling reason to revisit the consensus that emerged from the last conversation. Segall cites some bloggers who have written lengthy and serious blog posts. Accepting that characterization for purposes of argument, I note that the bloggers he mentions are also prolific and/or serious scholars. They don't appear to need special incentives to do the blog posts, or at least the existing incentives for doing so, such as notoriety or immediate impact, are sufficient. And not all blog posts come anywhere near meeting that standard. Most don't.

2: I understand Carissa's "defense of law review articles" to be a general defense, not a strong defense of the status quo in legal scholarship. I was gobsmacked that a commenter defended non-blind review of submissions; I know of few academic defenders of such a practice, and rightly so. I think the quality of a piece should count, not the ostensible prestige of its placement. We could criticize many other aspects, not only of the law review system, but of the format of law review articles and the tricks and stratagems baked into current writing and submission practices by ambitious law professors, and I've done so here repeatedly. Insofar as Segall argues for giving greater consideration to shorter pieces that still constitute good scholarship, I agree. Some of my better pieces (in my view) have been shorter ones, including book reviews (as we do them in the legal academy, as opposed to the 3-page reviews common in other disciplines), often precisely because they aim at a narrower problem, dispense with unnecessary literature reviews (to be clear, not all literature reviews are unnecessary, although even the necessary ones could be done differently or better), and can be sharp invitations to newer or better discussion. Some of the reasons we count long pieces over short ones, or sometimes don't count short ones at all, elevate form (not even form, really, but length) over function. We could also argue about the value of turning more long pieces into full books or published monographs, although that too threatens to elevate form over function. The means of production in law tend to prefer articles over books, and the existence of a vast universe of law reviews means it is easier and cheaper to produce long articles without having to publish books. I think we undervalue books in the legal academy. But it is also possible that some other disciplines overvalue books and that some books in those fields would be better as long articles, if there were journals willing to publish them and books were not the sine qua non for tenure in those fields. (Law is not the only discipline in which the tail sometimes wags the dog.) Perhaps the right balance lies in between. In any event, I took Carissa's defense not as an absolute but as a comparative defense--as a defense of full scholarship over bite-sized non-scholarly writing, at least for purposes of what we value and give credit for as scholarship in the legal academy.

3: There are debates about the purpose of legal scholarship. I have my own views on this, but I've offered them elsewhere, and I'm not insistent on winning those debates or ruling "out of bounds" other forms or aims of legal scholarship, although I think they must not sacrifice certain scholarly values for the sake of, say, impact or persuasion. I do not think, however, that "national attention" or "speak[ing] relatively quickly about important current legal events" are genuine scholarly desiderata. Of course these achievements may have considerable value. That doesn't mean they have scholarly value or must be treated as "scholarship." Op-eds, tweets, and other short contributions that make big splashes very rarely are scholarship in any useful sense of the word. They generally do not seriously advance knowledge, require or demonstrate mastery of a difficult field or issue, carefully consider counter-arguments, acknowledge and describe the limits or frailties of their arguments, and so on. If they did, they would be much less likely to get attention; indeed, they would be less likely to get published by newspapers or online opinion-piece publishers in the first place. They generally get attention because they provoke or persuade, and the tools used to provoke or persuade are often rhetorical strategies not necessarily linked to, and sometimes in tension with, scholarly accomplishment or values. Some of the most attention-getting, widely followed legal academic writers in the public arena (I'm thinking especially of Twitter here) are highly questionable in the accuracy and quality of their arguments. (In a comment on Carissa's post, Orin Kerr suggests that doing both--writing an article and then presenting your ideas in a blog post or op-ed--can "combine analytical rigor with public engagement without sacrificing one for the other." That can be true, and Orin is a good example of someone who does so very well. But I'm less sanguine about this one-two combo. Many such "public engagements" aim at persuasion, and do so through rhetorical strategies that can be misleading about the arguments presented more fully in the scholarly article. I'm not arguing against such engagements. But I think scholars who engage in this activity--and I certainly have, in op-eds and other public writings--should either be very careful about what they say there, even at the cost of making it less likely to get published or garner attention, or avoid trading on their job titles and academic positions. There's nothing wrong with writing something as "Joe Blow" rather than "Joe Blow, the Gavin Harrison Professor of Law at Podunk Law School.") I am perfectly happy for debates about the value of public "engagement" and real-world impact to continue. But good scholarship is not a democracy or popularity poll. Its quality is judged from within the disciplinary community. Perhaps few people will read in full the piece by Ryan Williams that Segall mentions (in a fair and non-pejorative way). But some very serious scholars will read it carefully and take it very seriously, and may in the long run judge it to be excellent scholarship. (It has gotten good peer reactions already. I treat the fact of its being published by Harvard as basically irrelevant.)

4: Some legal scholars end up frustrated with scholarship itself, or end up finding greater personal or intellectual rewards through other forms of activity. (Some of this, I think, is a function of our imperfect processes for hiring legal scholars, which sometimes focus heavily on credentials, or on general signs of intelligence or "brilliance," rather than sifting through the applicants to find those with a true scholarly vocation. Among other things, we do not require the long investment in a scholarly career that characterizes the path for scholars seeking certification in other fields, although we are moving closer to that model. Still, insofar as we don't, we have less evidence of vocation to go on, and the candidates themselves have made less of an investment in being scholars and may be less certain that that's what they want to spend the rest of their lives doing.) Some--I can think of at least a couple each at most elite law schools--become reasonably serious public intellectuals. I can think of one or two legal academics that I would characterize as having become not serious public intellectuals but, in effect, journalists or standard-issue opinion writers. Some of these individuals reach a point where they rarely if ever publish legal scholarship at all. They still write, and some write voluminously. They do not abandon writing altogether in favor of excellent teaching or service (which we might nonetheless value highly in an academic colleague in what is still also, and perhaps primarily for law schools, a teaching and training enterprise). Nor do they necessarily become people who retain their tenure but devote an absolute minimum of effort to scholarship, service, and tenure, a category of colleague generally labeled as "dead weight" within the academic profession. But they change writing genres. They don't engage in scholarship any more.

As general readers, we may value what they produce very highly. More particularly, what they produce may be valued very highly by the world outside the academy. They may garner significant book sales, go on the paid lecture circuit, get commissions from think tanks or advocacy groups, and get paid to write by various mainstream publications. In other words, they have considerable incentives and can reap considerable rewards as public intellectuals. I quite enjoy some of this work. But it is not at all clear to me why one needs to, or should, retain one's paid and tenured academic position to do it. There are plenty of people who aspire to an academic position precisely because they want to advance knowledge in a discipline through a method and form of writing that is expensive and difficult to produce (at its best, anyway), uncertain in its time horizons, unlikely to pay for itself if sold to the public, and aims at the longue duree rather than at short-term gain and rapid production. These are the people who need academic positions.

If you have decided to devote yourself instead to other forms of writing, that's fine with me. It may be your true vocation and the greatest contribution you can make to the world. But if you've made that decision, perhaps you ought to cede your tenured position to someone who wants to pursue a life of scholarship, and devote yourself to this work. You will lose security of position, true. But the point of that security of position is to serve, protect, and contribute to the discipline, not to convenience the individual. There is no guarantee that David Brooks, Kevin Williamson, Ta-Nehisi Coates, or non-academic writers of serious general-interest books, will keep their current jobs or sell a lot of books. They're engaged in a chancy enterprise, albeit one that may turn out quite profitably. But that doesn't mean they should have sinecures at universities. My academic job allows me to blog; but my blog is hardly a good reason for me to have and keep that job, even if I were one day to say something useful in this space. You will also lose your title, which gives you the appearance of authority. But that appearance of authority is a function of the fact that you engage in scholarship, subject to all its duties and constraints and disciplinary judgments about its qualities. There is no sufficiently convincing reason why one should retain the title and the authority that comes along with it if one has abandoned the activity that is an essential element of that authority, and no reason why you can't find sufficient authority in what you write rather than from some academic job description in your author ID. Professional courtesy (or omertà), a desire not to offend, a healthy dose of self-interest, and the unimaginability for many scholars of giving up that job generally lead us to refrain from suggesting that not everyone should be, or remain, a tenured academic. But it's true. And there ought to be no shame, and may be much glory (not to mention honor, for the person who acts accordingly), in suggesting that people who have, or discover over time that they have, a non-scholarly vocation, ought to pursue it--and pursue it outside the academy.

I hope it is clear this is not aimed at Segall personally. I know he has a book coming out and I assume by this that he is still engaged in scholarship. I trust he takes teaching and service (in addition to the service of writing for Slate or what have you) seriously too. I am speaking more generally. Those who seek engagement and attention without also pursuing scholarship, who want to be general public intellectuals without remaining serious contributors to an academic discipline, may like having academic positions while they do so, but don't require them. And it's not clear they should have them. The cost of their not surrendering such positions is visited on would-be serious scholars who don't get jobs as academics or struggle as adjunct or contract faculty. They need and deserve those tenure-track positions more, so they can do the scholarly work for which such positions were intended. By all means give non-scholarly writing some credit, as service anyway. But that's all that's needed.

* A short addendum for the sake of fairness. I can't recall whether this person in particular motivated the sentence asterisked, but one person who engaged in such a discussion with me on Twitter takes issue with my description of that discussion and believes I have mischaracterized it. I'm happy to note that disagreement. I'm also happy to note that 1) I have received similar reactions from others on Twitter, and I think the general observation holds; 2) I certainly had that general discussion somewhere in mind but can't recall whether what I had in mind was this individual's criticisms at the time or those of others; and 3) disputes about the meaning of statements limited to some 280 characters are likely to be legion, especially among law professors (myself included, no doubt), who are often willing or eager to challenge other people's readings and understandings, and seem to me to support my view that the consensus that emerged about giving not giving credit to blogging as "scholarship" should apply tenfold to Twitter.

Comments

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I appreciate the comment. I recognize that it involves a view that is very different from mine about scholarship or the scholar's function, and also that as a believer in institutional pluralism, including the possibility of contending views of what the scholar's function is in the first place, I am reluctant to turn this into a contest unto the death. I will add only three things: 1) I have no objection to the argument that scholarship must be made more relevant to the professional community--or, at least in my view, that more scholarship must be made more relevant to the professional community; I don't think it precludes every form of legal scholarship that is less relevant, although neither do I object to the idea of exploring academic departments of law that would focus more on these issues (and almost certainly pay less) and operate somewhat separately from professional schools training students in law. I don't fully agree with it, by any means, but I certainly don't object to that argument or to people pushing to make scholarship more relevant to lawyers and judges. I still think that this (or any) form of scholarship should meet certain basic requirements for scholarship, however. 2) We might disagree, not so much on whether there's a difference between writing for the public and making scholarship more relevant to the professional community, but on whether those people who write for larger audiences will return to the fold if legal scholarship adopts the model of relevance you describe. Many op-ed pieces and things of that sort are *politically* relevant, but I'm not sure they're *professionally* relevant. Many of them, in my quick view, are closer to popularized versions of the areas or types of scholarship that are not necessarily professionally relevant--especially con law--than they are to popular versions of professionally relevant scholarship. I don't think Prosser or Keeton would have turned to Slate instead of something else. 3) I respectfully disagree with the implicit idea that I'm talking about punishment or retribution. *If*--I'm taking that as a given only for purposes of this response--someone with a tenured position really wants to be a journalist, or a political columnist, or a public intellectual who no longer engages in sustained scholarly work on law, the suggestion that they ought to pursue that work full time, and that there are would-be scholars out there who would gladly use those positions to undertake the kind of work for which academic positions are created and for which the academic function--with its protections but also its obligations--exists, is not punitive, nor is it intended to be. I acknowledge that some academics would view it so, but I think that has to do with the job and its creature comforts, not with any intrinsically punitive or retributive aspect of suggesting, to put it in Stanley Fish's terms, that scholars should do their jobs, and not someone else's, and that if they really want to do someone else's job they should feel free to do so but shouldn't necessarily remain in the academy to do it. You and I might disagree about the point at which someone is trying to have his cake and eat it, but possibly not on the basic idea that such a condition can arise, and that at that point suggesting that they would be better situated elsewhere is not punitive. And, again, since there are people out there who would like to be scholars and have no desire to give that up for a life of talk shows and tweets and paid punditry, we might spare a thought for those people, and not just talk in terms of "punishing" the would-be pundit. But I acknowledge that there may be some fundamental disagreements in some of our premises.

Posted by: Paul Horwitz | Apr 11, 2018 7:33:59 AM

I agree with you on blind submissions. It is difficult to understand why anybody would continue to defend the current method of review.

I disagree with you on people who do not write formal scholarship per se giving up their tenured positions; primarily because legal scholarship is a very incestuous racket that has little impact outside the walls of other legal academics. It is, quite frankly, just this side of useless.

Tenured professors that recognize this should not be punished because they prefer to reach a wider audience, even if their writings are not formal scholarship, since it seems tenure also serves to protect them from retribution for not engaging in a very narrow concept of "scholarly activities"--which is basically what is being proposed here.

More focus should be paid to fixing the review system and making strides to make research relevant to the professional community. Accomplish that and one might find those that have wandered off in search of relevance returning to write scholarly articles.

Posted by: YesterdayIKilledAMammoth | Apr 11, 2018 12:56:31 AM

Yes, I started with "short addendum"--non-ironically!--and by the time I was giving it a quick post-publication once-over I realized that title might not quite fit. My pleasure re institutional memory, which is one of the things universities and other institutions should but don't always provide.

Posted by: Paul Horwitz | Apr 10, 2018 12:54:52 PM

The url is "a short addendum to Carissa's post," while the title now reads "Some comments." I wondered whether anyone would raise the discussion a decade ago, when the blawgosphere was young and filled with possibilities. Thank you, Paul, for providing some institutional memory for the new kidz.